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Category Archives: Online Speech

The Parliament passed the Aadhaar Amendment Bill, expected to have a far-reaching impact on data sharing with private companies and State Governments; France rolled out a new “digital tax” for Big Tech, Facebook slapped with a massive $5bn fine by the US FTC, while uncertainty over Huawei’s inclusion in India’s 5G trials deepens — presenting this week’s most important developments in law and tech.

In focus this week: opinions and analyses of the Defence Budget for 2019-20.

The Election
Commission(EC) released the dates for the 2019 Lok Sabha elections on the 10th
of March, and with this announcement,
India has officially entered the home stretch of the 2019 elections. With the Model
Code of Conduct (MCC) now in effect, the political parties are bound
by certain restrictions in terms of advertising and campaigning. MCC’s have
been in effect since 1968 which serve as a binding model code based upon a
consensus between all political parties to ensure ethical behavior during
elections. Due to its consensual nature, MCC is not a statutory document and
the violation of many of its provisions does not attract punitive action. The
MCC seeks to ensure free and fair elections and is enforced by the Election
Commission. It has evolved with time to incorporate all aspects of political
campaigning, with the current edition of the MCC also extending to social media
posts and online advertising. This shows a paradigm shift in the mode of
campaigning employed by many political parties; with the rise of social media
activity in India, the online sphere has become a virtual battleground of
political advertisement.

The regulations which
govern other advertisements, such as print media and radio, will also be
extended to social media platforms like Facebook, Twitter. The forums have been
contacted by the Elections Commission, and platforms like Twitter
and Facebook
have released their own codes of conduct to be followed at the time of
elections. The increased scrutiny of social media platforms for political
advertisement is a welcomed change, and comes at the heels of the Cambridge
Analytica scandal which broke early last year, and is rumored to
have has significant impacts on the US elections and the Brexit vote.

The new guidelines
bring political advertisements on social media platforms under the MCC, similar
to the provisions relating to newspaper and radio advertisements, parties are
now required to disclose expenditure accounts for social media advertisement as
well. These advertisements will also have to go through a mandated
Pre-Certification procedure, and they will be monitored by the Media Certification and Monitoring Committees (MCMCs) placed at the
district and state levels to which a social media expert will be added. The candidates are also required to submit
details of their social media accounts (as applicable) at the time of filing
nominations. The EC has also extended the norms applicable to social media advertising
to include Voice and SMS messages propagated through phones.

The platforms have
also agreed to the guidelines laid down in the MCC and agreed to take stringent
actions against any content reported by designated officers of the EC. To this
end, they have agreed to set up priority channels with the EC for quick
response to complaints. The EC has also sought
to extend the ban on political advertisement for 48 hours before the
elections to social media, as mandated under section 128 of the Representation
of People Act.

The new guidelines
have been lauded and criticized by many. One of the chief complaints stems from
the fact that private posts of individuals would not count as advertisements
and would thus not be covered under these regulations. Parties and workers are
still able to use their pages to upload posts supporting their candidacy which
are exempt from the MCC. However, it would be difficult to bring personal posts
under this ambit without violating the right to freedom of speech guaranteed
under the constitution. Any discrepancies or hate speech propagated under these
private posts would still be governed under their community guidelines and can
be reported under the same. Additionally, depending upon the subject matter of
the individual posts, they would also be punishable under the Hate
Speech laws in India, such as those relating to promoting enmity
between groups, assertions prejudicial to national integration, hurting religious
sentiment etc. There is a comprehensive and robust legal framework which deals
with Hate Speech in India and as such the EC should not be required to step in
to govern a citizen’s private posts made in a personal capacity.

The effects of the
guidelines can already be felt, as the EC has contacted Facebook, asking them
to take down a controversial poster featuring members of the Armed forces,
being used as part of a political campaign. The poster
in question was uploaded by the social media account of O.P Sharma
and has a picture of Wing Commander Abhinandan
Varthaman on it, which is in direct contravention of and advisory issued by the
commission in 2013, in which it had asked them to desist from using photographs
of defence personnel or any events associated with them for political
propaganda

What you can do: The 17th Lok
Sabha elections also debuts the cVIGIL
app, which is a mobile application created by the Election Commission to
provide a reliable mechanism enabling citizens to transmit and track complaints
relating to the breach of the MCC. In addition, the Voters helpline 1950, can
also be used to register complaints for potential breeches of the MCC. With the
upcoming election shaping up to be one of the most expensive elections to date,
the EC is working on ensuring a free and fair election process without any
voter coercion and fake news to skew the balance.

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We are launching our report on hate speech laws in India. This report maps criminal laws and procedural laws, along with medium-specific laws used by the state to regulate hate speech.

This report was launched last week at a panel on ‘Harmful Speech in India’, as a part of UNESCOs World Press Freedom Day. The panel was comprised of Pamela Philipose, Aakar Patel, Chinmayi Arun and Sukumar Muralidharan. The panelists discussed the state of harmful speech in the country and regulatory issues arising from the proliferation of hate speech.

We hope that this report can serve as a basis for further research on hate speech in India, and can serve as a resource for practicing lawyers, journalists and activists.

We would appreciate any feedback, please feel free to leave a comment or to write to us.

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In 2015, the NGO Prajwala sent the Supreme Court a letter raising concerns about videos of sexual violence being distributed on the internet. Over the years, an expert committee was established, which has recommended auto-blocking select search terms and setting up online portals to register complaints against sexual abuse material, amongst others.

The matter was heard today by a bench comprising of Justice Lokur and Justice Lalit.

Following from previous hearings, where the setting up of the ‘online cyber crime reporting portals’ was discussed, the petitioners have asked for 4 months time to train officers in charge of such portals.

Further, on certain proposals, petitioners and respondents disagreed on what could be administered and what was technically feasible. The respondents further stated that the technology was not available to implement certain proposals.

The order passed today can be found here. The next hearing is scheduled for the 16th of April, 2018.

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In 2016, Norwegian writer Tom Egeland, uploaded a post on Facebook, listing seven photographs that “changed the history of warfare”. The post featured the Pulitzer-winning image, ‘The Terror of War’, which depicts a naked nine-year-old running from a napalm attack during the Vietnam War. Facebook deleted the post, and suspended Egeland’s account.

A Norwegian newspaper, Aftenposten, while reporting on the suspension, used the same image on its Facebook page. The newspaper soon received a message from Facebook demanding that the image be either removed, or pixelated. The editor-in-chief refused to comply in an open letter to Mark Zuckerburg, noting his concern at the immense power Facebook wielded over speech online. The issue escalated when several Norwegian politicians, including the Prime Minister, shared the image on Facebook, and were temporarily suspended from Facebook as well.

Facebook initially stated that it would be difficult to create a distinction between instances where a photograph of a nude child could be allowed. However, due to widespread censure, the platform eventually decided to reinstate the image owing to its “status as an iconic image of historical importance.”

This incident brought to light the tricky position Facebook finds itself in as it attempts to police its platform. Facebook addresses illegal and inappropriate content through a mix of automated processes, and human moderation. The company publishes guidelines about what content may not be appropriate for its platform, called its ‘Community Standards.’ Users can ‘flag’ content that they think does not meet the Community Standards, which is then reviewed by moderators. Moderators may delete, ignore, or escalate flagged content to a senior manager. In some cases, the user account may be suspended, or asked to submit identity verification.

As evident from the ‘Terrors of War’ incident, Facebook has often come under fire for supposed ‘wrong’ moderation of content, as well as opacity in how its community review process comes to be applied. It has been argued that content that is evidently in violation of Community Standards is often not taken down, while content that should be safe is censored. For instance, Facebook courted controversy again, when it was accused of blocking content and accounts documenting persecution of the Rohingya Muslim community in Myanmar.

Closer home as well, multiple instances of Facebook’s questionable moderation practices have come to light. In October 2017, Raya Sarkar, a law student based out of the United States, had created what came to be called, the List. The List named over 70 prominent academics that had been accused of sexual harassment. The approach proved extremely controversial, sparking debates about due process, and the failure of institutional mechanisms to address harassment. Facebook blocked her account for seven days, which proved equally contentious. Sarkar’s account was restored only after Facebook staff in Palo Alto were contacted directly. Similar instances have been reported of seemingly arbitrary application of the Community Standards. In many cases accounts have been suspended, and content blocked without notice, explanation or recourse.

Content moderation inherently involves much scope for interpretation and disagreement. Factors such as context, as well as cultural differences, render it a highly subjective exercise. Algorithms don’t appear to have reached sufficient levels of sophistication, and there exist larger issues associated with automated censoring of speech. Human moderators are by all accounts burdened by the volume and the psychologically taxing nature of the work, and therefore prone to error. The way forward should therefore be first, to ensure that transparent mechanisms exist for recourse against the removal of legitimate speech.

In light of the ‘Terror of War’ incident, Facebook responded by updating its community standards. In a statement, it said that it would allow graphic material that would be “newsworthy, significant, or important to the public interest — even if they might otherwise violate our standards.” Leaked moderator guidelines in 2017 opened the company up to granularpubliccritique of its policies. There is evidently scope for Facebook to be more responsive and consultative in how it regulates speech online.

In June 2017, Facebook reached 2 billion monthly users, making it the largest social network, and a platform for digital interaction without precedent. It has announced plans to reach 5 billion. With the influence it now wields, it must also embrace its responsibility to be more transparent and accountable to its users.

With regard to the pending matter of linking Aadhaar with certain services, the Bench stated that the hearing for interim relief would take place tomorrow (14/12). In addition, the Centre issued a notification on the 12th of December, stating that the deadline for linking Aadhaar with bank accounts, which was the 31st of December, was extended indefinitely. On the 13th of December however, this deadline was fixed as the 31st of March. Our coverage of the Aadhaar linking matter can be found here and here.

Sabu Mathew George vs. Union of India

Today, the Supreme Court heard the ongoing matter of Sabu Mathew George vs. Union of India. In 2008, a petition was filed to ban advertisements endorsing sex-selective abortions from search engine results. Advertisements endorsing sex selective abortions are illegal under Section 22 of the PNDT Act (The Pre-conception and Pre-Natal Diagnostic Techniques Act), 1994 Act. Several orders have been passed over the last few years, the last of which was passed on April 13th, 2017. Following from these orders, the Court had directed the Centre to set up a nodal agency where complaints against sex selective ads could be lodged. The Court had also ordered the search engines involved to set up an in-house expert committee in this regard. The order dated April 13th stated that compliance with the mechanism in place would be checked hereinafter. Our blog posts covering these arguments and other issues relevant to search neutrality can be found on the following links (1, 2 and 3).

In today’s proceedings, the matter was disposed off.

Senior counsel Sanjay Parikh appearing for the petitioners started off by commenting on the working of the nodal agencies and the limits within which they function. He stated that search engines were ‘washing their hands off’ and trying to pawn off their responsibilities to the government.

Counsel for the respondents argued that the petitioners displayed a fundamentally incorrect understanding of how the internet functioned. They stated that a blanket ban on content, as desired by the petitioners, would not be possible.

The respondents then stated that problematic content was taken down in the time period stipulated in the earlier orders. The petitioners refuted this statement.

The respondents once again stated that the petitioners ‘betrayed a lack of understanding’ of how search engines functioned.

The petitioners stated that search engines have been much more proactive and have had more success in taking down content related to child sexual abuse material and terrorism. As per the petitioners, this implies that search engines are capable of removing content in an efficient manner.

The respondents stated that material relating to sexual abuse usually relates to images and other visuals, as opposed to search terms or words. They stated that this was an important distinction, and would determine the extent to which search engines could efficiently take down content.

Referring to the affidavit filed, the petitioners reiterated that the government and the nodal agency were ‘helpless’ and would need further cooperation to prevent content from disseminating.

To this, the respondents stated that the government of India should block problematic URLs.

The petitioners then drew attention to the magnitude of illegitimate content on the internet, by discussing statistics from a YouTube search.

At this point, Chief Justice Dipak Misra interjected by stating that nodal agencies had to function in a competent manner and ensure that complaints were addressed in the requisite time period.

The petitioners responded stating that nodal agencies were finding it difficult to efficiently regulate content, since the takedown of URLs did not affect the availability of related illegitimate content on the internet.

The respondents then outlined the constraints within which search engines functioned. They stated that a search engine could only de-index illegitimate content on the internet, and that the content would continue to exist on the internet otherwise. They remarked on safe-harbour exceptions and also stated that filtering and indexing is an algorithmic process, which could only be regulated to a certain extent. Reiterating on the algorithmic nature of the process, they stated that ‘one step could not be removed from the process’.

They also reassured the petitioners that any problematic URLs, that they were intimated of, would be removed. However, proxy websites with similar content could still crop up. They stated that the possible permutations and combinations were endless, and eliminating search results was not possible. However, sponsored ads could be dealt with effectively. They also stated that dealing with every instance of infringement on an individual level would be impossible.

At this point, the Chief Justice asked the respondents to elaborate on what could be done.

The respondents stated that there was a need to understand the technology better.

The Bench then asked the petitioners if they could interact with the committee to better understand technical solutions.

Mr. Parikh, referring to an affidavit filed, stated that Google, in 2014, had displayed the ability to ‘proactively’ takedown content, without being informed by external bodies.

The respondents stated that they would look into this.

The Bench concluded by stating that the nodal agency should hold a meeting with the respondents and the petitioners within 6 weeks.

Chief Justice Dipak Misra read out the order.

Mr. Sanjay Parikh appearing for the petitioners stated that the nodal agency, despite the orders passed, had not been able to stop the offending material from being used. According to Mr. Parikh, search engines alone have the potentiality to deliberately remove offending material. Mr. Parikh has also stated that there are other ways in which offending content can be removed by the search engines.

The counsel for the respondents have stated that content can only be removed once it is pointed out, and once a specific URL is specified. There are other permutations and combinations to consider while regulating search results.

Senior Counsel Pinky Anand has stated that the nodal agency is hard at work and addresses complaints efficiently whenever it receives them.

The Supreme Court of India is often tasked with adjudicating disputes that shape the course of free speech in India. Here’s a roundup up of some key cases currently before the Supreme Court.

Kamlesh Vaswani vs. Union of India

A PIL petition was filed in 2013 seeking a ban on pornography in India. The petition also prayed for a direction to the Union Government to “treat watching of porn videos and sharing as non-bailable and cognizable offence.”

During the course of the proceedings, the Department of Telecommunications ordered ISPs to block over 800 websites allegedly hosting pornographic content. This was despite the freedom of expression and privacy related concerns raised before the Supreme Court. The Government argued that the list of websites had been submitted to the DoT by the petitioners, who blocked the websites without any verification. The ban was revoked after much criticism.

The case, currently pending before the Supreme Court, also presented implications for the intermediary liability regime in India. Internet Service Providers may claim safe harbor from liability for content they host, as long as they satisfy certain due diligence requirements under Sec. 79 of the IT Act, read with the Information Technology (Intermediaries Guidelines) Rules, 2011. After the Supreme Court read down these provisions in Shreya Singhal v. Union of India, the primary obligation is to comply with Court orders seeking takedown of content. The petition before the Supreme Court seeks to impose an additional obligation on ISPs to identify and block all pornographic content, or risk being held liable. Our work on this case can be found here.

Sabu Mathew George vs. Union of India

This is a 2008 case, where a writ petition was filed to ban ‘advertisements’ relating to pre-natal sex determination from search engines in India. Several orders have been passed, and the state has now created a nodal agency that would provide search engines with details of websites to block. The ‘doctrine of auto-block’ is an important consideration in this case -in one of the orders the Court listed roughly 40 search terms and stated that respondents should ensure that any attempt at looking up these terms would be ‘auto-blocked’, which raises concerns about intermediary liability and free speech.

Currently, a note has been filed by the petitioners advocate, which states that search engines have the capacity to takedown such content, and even upon intimation, only end up taking down certain links and not others. Our work on this case can be found on the following links – 1, 2, 3.

Prajwala vs. Union of India

This is a 2015 case, where an NGO (named Prajwala) sent the Supreme Court a letter raising concerns about videos of sexual violence being distributed on the internet. The letter sought to bring attention to the existence of such videos, as well as their rampant circulation on online platforms.

Based on the contents of the letter, a suo moto petition was registered. Google, Facebook, WhatsApp, Yahoo and Microsoft were also impleaded as parties. A committee was constituted to “assist and advise this Court on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are not available for circulation” . The relevant order, which discusses the committee’s recommendations can be found here. One of the stated objectives of the committee was to examine technological solutions to the problem – for instance, auto-blocking. This raises issues related to intermediary liability and free speech.